United States Court of Appeals
FOR THE EIGHTH CIRCUIT
______________
No. 97-3406WM
______________
John C. Burns, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri.
James A. Gammon and Jeremiah (Jay) *
Nixon, Attorney General, Missouri, *
*
Appellees. *
___________
Submitted: November 18, 1998
Filed: April 7, 1999
___________
Before RICHARD S. ARNOLD, FAGG, and HALL,1 Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
John C. Burns, a Missouri prisoner, brings this petition under 28 U.S.C. § 2254
for a writ of habeas corpus. He challenges his 1987 state-court convictions for
attempted forcible rape, armed criminal action, and first-degree assault. Petitioner
1
The Hon. Cynthia Holcomb Hall, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
argues that his trial counsel rendered ineffective assistance in a number of ways,
including not properly presenting evidence of mental impairment; that the prosecuting
attorney was guilty of misconduct in his closing argument by falsely implying that
Burns, by refusing to plead guilty, had subjected the victim of the crime to the
humiliation of having to testify in public; and that the trial judge had made the trial
fundamentally unfair by saying, in the presence of the jury, that "vicious crimes" had
been committed.2 The District Court denied the writ, and petitioner now appeals. We
reject petitioner's second and third arguments, but remand for further proceedings on
his ineffective-assistance claim.
2
On February 4, 1998, we granted a certificate of appealability on these three
issues. The certificate was denied with respect to other issues raised below.
Petitioner, through appointed counsel, then moved for a "certificate of probable
cause." Petitioner took the position that the new certificate-of-appealability
procedure enacted by the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1213 (AEDPA), did not apply to this case, which was
filed in the District Court before the enactment of that statute. By order entered on
March 26, 1998, we denied the motion, citing our Circuit precedent, Tiedeman v.
Benson, 122 F.3d 518 (8th Cir. 1997). A petition for rehearing en banc directed to
that order was denied. Petitioner renews in his brief his argument, previously
rejected, that the certificate-of-appealability provision of AEDPA does not apply to
this case. We respect counsel's desire to preserve his record on the point, but we must
again reject it. Tiedeman is the law of this Circuit. One panel is not free to depart
from the previous holding of another.
Petitioner also argues that, even under AEDPA, the grant of a certificate of
appealability on one or more points brings up the whole case, so as to enable him to
argue the merits of points with respect to which the certificate was denied. We
disagree. The whole point of the new procedure is to limit appeals to issues on which
a substantial showing of the denial of a federal constitutional right has been made.
-2-
I.
The facts of the case are set forth in the opinion of the Missouri Court of
Appeals affirming Burns's conviction on direct appeal. There seems to be no dispute
about these facts. Burns does not contest what happened. In fact, he confessed to
committing the acts charged. His defense was that he was mentally impaired to such
an extent as to provide him with a complete defense or, at least, to diminish his
responsibility. We quote from the Court of Appeals' opinion:
On the night of December 1, 1986, [appellant] entered the
"Inside Story" bookstore, located in the Red Bridge
Shopping Center. The sales clerk observed him browsing
through the books. Subsequently, he called the clerk from
the back of the store to help him with some books. The
clerk responded but became concerned because of
appellant's facial expression and started to step back from
him when he grabbed her by the shoulder and threw her
into the bookcases. Appellant told the victim, "Don't yell,
don't fight, or I'll cut you." He then pushed up her skirt and
pulled off her pantyhose and pants. The victim informed
appellant that the store owner was due back in a few
minutes. Appellant then began hitting the victim about the
face and ears. Appellant was kneeling in front of the
victim and unzipped his pants and started masturbating. At
this juncture appellant tore open the victim's blouse, pulled
her bra down and cut the straps with a knife. He then
proceeded to again hit the victim in the face. The victim
"was afraid I was going to die." The appellant then
attempted to rape the victim. The victim testified:
Q. Okay. When you say he tried to rape
you – I know this is difficult, but you're going
to have to explain to the Jury exactly what he
did that led you to believe he was trying to
rape you.
-3-
A. He was in front of me with his trousers
down. He was trying to penetrate me, and he
was saying, "Don't get tight, don't get tight."
All I could see was the knife sticking there in
the box of books, and he would say, "Don't
get tight."
At this time the victim heard the book shop door open and
yelled for help. The defendant then grabbed his knife and
jabbed it in her throat and cut across her throat. He then
jumped up and left.
State v. Burns, 759 S.W.2d 288, 290 (Mo. App. 1988).
The jury found petitioner guilty on all three charges, attempted forcible rape,
armed criminal action, and first-degree assault. Under Missouri law, because Burns
had no prior convictions, it was the jury's duty to fix the punishment. It sentenced
Burns to 44 years, 50 years, and life imprisonment on the three counts, respectively.
The convictions were affirmed on direct appeal. Petitioner did not seek post-
conviction relief in the state courts either under Mo. Sup. Ct. R. 27.26, which was in
effect at the time of the convictions, in 1987, or under the successor rule, Mo. Sup.
Ct. R. 29.15, which became effective on January 1, 1988.
II.
Petitioner's first argument is that he was denied the effective assistance of
counsel at his trial. The District Court denied relief on this theory without reaching
the merits. The argument, that Court held, was procedurally barred because it had
never been properly presented to the state courts.3
3
Petitioner says he did present the claim in a pro se petition for habeas corpus
under Mo. Sup. Ct. R. 91. We have held that a Rule 91 petition does not remove a
-4-
There is no doubt that petitioner's federal claim of ineffective assistance of
counsel has been defaulted. It is also clear that this default is due to the application
of an independent and adequate state procedural rule. Petitioner not having properly
raised the issue up to now, there is no process presently available to enable him to
raise it in the state courts. State remedies, therefore, have been exhausted (the
exhaustion doctrine refers to the absence of presently available state remedies), but
the argument is procedurally barred, unless the bar can somehow be avoided.
Petitioner can avoid the bar in one of two ways, either by showing cause for the
procedural default and prejudice resulting from it, or by showing a fundamental
miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A fundamental miscarriage of justice is not suggested. Petitioner does contend,
however, that he had cause for the procedural default.
Burns argues that he has established cause in two different ways. The first has
to do with his failure to seek post-conviction relief. Burns had no Sixth Amendment
right to the assistance of counsel in seeking post-conviction relief. E.g., Coleman v.
Thompson, supra, 501 U.S. at 752. Indeed, if he had had counsel, either retained or
appointed, any deficiencies in that lawyer's performance could not have constituted
cause for present purposes. Id. at 752-54. Burns points out that, with respect to
claims of ineffective assistance of counsel, a Missouri post-conviction trial court is
the first court in which such claims could be made.4 Whether that situation should
be carved out from the Coleman rule was a question not addressed in Coleman itself,
see id. at 755-56. This Court, however, has addressed it. We decided the issue
adversely to Burns's position in Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.
prior procedural default. Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir.), stay
denied, 501 U.S. 1271 (1991).
4
Actually, this is only the general rule. At the time of Burns's trial, such claims
could also have been raised, to a limited extent, on direct appeal. We discuss this
aspect of the case later in this opinion.
-5-
1992). Burns argues at some length that Nolan was wrong, but this panel cannot
change Nolan, for reasons we have already discussed.
Burns argues that his case is different because of his lawyers' conflict of
interest. The lawyers who represented him at trial, two public defenders, were
obviously not in a position to attack their own conduct. Two different lawyers were
appointed to represent petitioner on direct appeal, but they were also public
defenders, apparently from the same office as trial counsel. (All four lawyers gave
their address as the 10th floor of the Jackson County Courthouse.) So Burns never
got a lawyer who could effectively, or even properly, argue that his trial counsel had
been ineffective. The difficulty with this argument is that Burns had no federal right
to any lawyer so far as post-conviction proceedings were concerned. Coleman v.
Thompson, supra.
Petitioner asserts that the "absence of a general right to the effective assistance
of counsel in rule . . . 29.15 proceedings" does not "bar a finding of 'cause' when, as
here, the attorney who was representing the petitioner at the relevant time labored
under a conflict of interest." Brief for Appellant 24. Two cases are cited for this
proposition: Jennings v. Purkett, 7 F.3d 779, 782 (8th Cir. 1993), and Jamison v.
Lockhart, 975 F.2d 1377, 1380 (8th Cir. 1992). Both of them are distinguishable.
No doubt there was a conflict of interest in the present case. The lawyer who
represented petitioner on direct appeal came from the same office as the lawyer who
had represented him at trial. So far as an argument that trial counsel had been
constitutionally ineffective is concerned, direct-appeal counsel had a clear conflict
of interest. The same would have been true if the Court had appointed counsel to
represent petitioner in a 29.15 or 27.26 proceeding, and that lawyer had come from
the same office. The conflict situation addressed in Jennings and Jamison was quite
different. There, it was trial counsel himself who had a conflict of interest, for
example, a business connection with a key witness that might have prevented counsel
-6-
from making a vigorous cross-examination. That sort of conflict was indeed
discussed in the context of "cause" for cause-and-prejudice purposes in both the
Jennings and Jamison opinions. The crux of the reasoning in those opinions,
however, was that the respective petitioners did not know, or at least claimed not to
have known, of the alleged conflict in time to file a 29.15 proceeding within the
period allowed by that rule.
It was this lack of knowledge that led us to find "cause" for purposes of the
procedural-bar analysis, or, at least, to remand for further findings on the issue of
cause. Nothing of the kind exists here. Petitioner's point on the merits is not that trial
counsel, at the time of trial, had a conflict of interest, but rather that trial counsel was
constitutionally ineffective in other respects – for example, in not properly presenting,
through the use of expert witnesses, petitioner's defense of diminished capacity. All
of the facts creating that claim had already occurred by the conclusion of the trial, and
all of those facts were known to petitioner.
Perhaps there is a hint of unreality in this kind of reasoning, given the fact that
petitioner had no lawyer to advise him as to what might or might not have been
ineffective assistance of his trial counsel in the constitutional sense.5 The answer is
that the law, in its solicitude for the protection of judgments from collateral attack,
presumes that clients have this kind of knowledge. Otherwise, it would never be
appropriate to invoke the procedural-bar doctrine against a petitioner who had not
been given post-conviction counsel. Such a proposition would run squarely contrary
5
Mo. Sup. Ct. R. 29.07(b)(4) provides that, after the end of a trial, the Court
must advise a convicted defendant that he has a right to question the performance of
his counsel, and inquire whether there are any reasons for dissatisfaction. If
substantial reasons are stated, the Court must then appoint counsel to prepare a 29.15
post-conviction petition. No such advice was given in the present case. The rule,
however, did not become effective until January 1, 1988, several months after
petitioner's conviction.
-7-
to the established doctrine that there is no Sixth Amendment right to post-conviction
counsel, and that neither the absence of such counsel, nor the deficient performance
of such counsel, if appointed, can create cause to avoid a procedural bar.
In short, we believe the law requires us to reject petitioner's conflict-of-interest
theory insofar as it is based on our Jennings and Jamison opinions.
In an effort to avoid this conclusion, petitioner cites Dawan v. Lockhart, 980
F.2d 470 (8th Cir. 1992). That case involved a new Arkansas post-conviction
procedure that bore some similarities to the Rule 29.15 procedure in Missouri. In our
order granting a certificate of appealability in this case, we invited the parties to
discuss "whether appellant had a federal constitutional right to the appointment of
counsel to pursue the then-new Missouri post-conviction [relief] procedure," citing
Dawan. The key provision in Dawan was newly adopted Ark. R. Crim. P. 36.4, under
which any claim of ineffective assistance of counsel had to be presented in the motion
for new trial. If this motion, including such claims, was then denied, the ineffective-
assistance issues would go up to the appellate court as part of the direct appeal. This
procedure, we held, created a post-trial, rather than a post-conviction procedure,
properly so called, and, in the special circumstances of the Dawan case, we held that
there was a right to the appointment of counsel in connection with the motion for new
trial.6 The difficulty with petitioner's Dawan argument is that Dawan concerned a
particular Arkansas procedure which, we have held, is crucially different from
Missouri's Rule 29.15. The latter rule creates a collateral remedy, not part of the
direct appeal. Lowe -Bey v. Groose, 28 F.3d 816 (8th Cir.), cert. denied, 115 S. Ct.
6
Both the respondent in the present case and the State of Arkansas, which has
filed an amicus brief, argue that Dawan was wrongly decided. The argument is
misdirected and must be rejected. As we have already observed in this opinion, one
panel is not free to disregard the holding of another. Moreover, we reaffirmed Dawan
in Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert. denied, 116 S. Ct. 1344
(1996).
-8-
674 (1994). There is a Sixth Amendment right to appointment of counsel on direct
appeal. That right, plus our understanding of Ark. R. Crim. P. 36.4, was the
underpinning of Dawan. There is no such right in post-conviction collateral
proceedings, and Missouri Rule 29.15 is such a proceeding. Dawan is therefore not
controlling here.
Finally, however, petitioner points out that, at the time of his trial, claims of
ineffective assistance in Missouri could be raised on direct appeal. The then-existing
collateral remedy, Mo. Sup. Ct. R. 27.26, was not the only means of raising a claim
of ineffective assistance of trial counsel, as Rule 29.15 now is. In 1987, when
petitioner was convicted, petitioner could have claimed ineffective assistance of trial
counsel on direct appeal, because the new Rule 29.15 had not yet gone into effect.
And here petitioner's conflict-of-interest argument strikes home, because the counsel
the state appointed to handle the direct appeal had, as we have noted, a clear conflict
of interest so far as the ineffective-assistance issue was concerned. The State points
out, and petitioner concedes, that ineffective-assistance claims could, at that time,
have been raised on direct appeal only "so long as the record would permit the
appellate court to evaluate the claims." Brief for Appellant 25. See State v. Wheat,
775 S.W.2d 155 (Mo. 1989) (en banc), cert. denied, 493 U.S. 1030 (1990); State v.
Harvey, 692 S.W.2d 290 (Mo. 1985) (en banc). So we agree with petitioner to this
extent: the absence of conflict-free counsel on direct appeal did violate his Sixth
Amendment rights and does furnish cause for his having failed to argue in the state
courts that his trial counsel was ineffective, but only to the extent that the trial record
itself would have permitted the appellate court to evaluate the claims of
ineffectiveness.
In order to avoid the procedural bar, of course, petitioner has to show more
than cause. He also has to show prejudice. In addition, he also has to show deficient
performance and prejudice in the sense of Strickland v. Washington, 466 U.S. 668
(1984), in order to succeed on the merits of any claim of ineffective assistance. And
-9-
finally, in the special circumstances of this case, he would have to show that his
ineffective-assistance arguments would have been apparent on the face of the record,
so as to be reachable on direct appeal. None of these issues has been briefed, and we
do not think it would be prudent for us to address them in the first instance. Instead,
this case will be remanded to the District Court for further proceedings to determine
whether petitioner can show prejudice for procedural-bar purposes, whether his
arguments could have been reached on direct appeal in the Missouri state courts
under the procedures that obtained in 1987, and finally (if the analysis gets this far),
whether he is entitled to relief under Strickland v. Washington, supra.
III.
Petitioner's next point has to do with a passage in the closing argument of the
prosecution. Petitioner's counsel's closing argument had made the point that a
defendant is entitled to justice just as much as the state is, and that petitioner had a
right to a fair trial and a fair verdict. In response, the prosecutor referred to the rights
of criminal defendants. He stated:
MR. BEDNAR: And it's fair that this defendant have a
trial, and it's fair that the State has the burden to prove
beyond a reasonable doubt that this defendant is guilty of
the crimes charged, the highest burden known to our
system. And now it's also fair that he has Caroline Arnold
come in here and he had the ability to sit there and, face-to-
face, confront all of the witnesses against him, to question
them through his attorney, to cross-examination, one of the
finest machines invented by man to get to the truth. That
was fair, and it was fair that Caroline Arnold had to go
through those humiliating --
MS. SCHENKENBERG: Your Honor, I object to that. It
was the State that called Ms. Arnold.
-10-
THE COURT: Objection overruled.
MR. BEDNAR: (Continuing) -- that she had to go through
those humiliating sexual assaults and those violent acts
perpetrated against her in this trial so that the defendant,
through his counsel, could cross-examine her.
Now it's fair that you, the Jury, who we chose on Monday,
go back to your jury room and deliberate upon the
punishment that this defendant deserves for the violent acts
that he committed at the Red Bridge Shopping Center on
December 1st.
Petitioner argues that these remarks invited the jury to punish him for exercising his
constitutional right to trial by jury and to confrontation of the witnesses against him.
We first deal with a procedural point. The Missouri Court of Appeals held that
counsel's objection was not sufficiently specific to preserve anything for appellate
review. "Such an objection states no grounds for why the remark is opposed, does
not allow the court an informed opportunity to rule and ultimately presents no
question to the trial court for decision or to the appellate court for review." 759
S.W.2d at 294. The State argues that the point is procedurally barred, not having
been properly preserved in the state courts.
The Missouri Court of Appeals, however, went on to give the argument plain-
error review. "[U]nless the complained of remarks are determined to have a 'decisive
effect' on the jury no plain error exists." Id., quoting State v. Wilson, 757 S.W.2d
622, 630 (Mo. App. 1988). In the Court's view, it could not be determined that the
argument had a decisive effect on the jury, and so, the Court held, there was no plain
error.
-11-
When the state courts have given a point plain-error review, is that point
procedurally barred on federal habeas? As the District Court observed, our
precedents are in some disarray on this issue. See Mack v. Caspari, 92 F.3d 637, 641
n.6 (8th Cir. 1996). In this situation, this panel is free to select what it believes to be
the better rule. We think we should do what the state court did: give the point plain-
error review. In this way, we are not encroaching at all on the authority of the state
courts; we are fully respecting their procedural rule; and we are giving the argument
the same degree of attention that the state courts gave it. This is what we did in
Robert v. Bowersox, 137 F.3d 1062, 1064 (8th Cir. 1998), and in Chambers v.
Bowersox, 157 F.3d 560, 566 (8th Cir. 1998), and we will do the same thing here.
We do not think that the argument amounted to plain error. Error it surely was,
because the prosecutor's sarcastic statement invited the jury, though not in express
words, to punish petitioner for making the victim of the crime go through the ordeal
of cross-examination, which petitioner had every right to do. As the Missouri Court
of Appeals observed, the remarks were those of "a prosecuting attorney ensnared in
his own eloquence, [and] add[ed] little to the case . . .." They were "better left
unsaid." 759 S.W.2d at 294-95. We think the trial judge ought to have instructed the
jury to disregard the remarks, and certainly not to penalize petitioner for having
exercised his right to go to trial. But petitioner has not met his burden of
demonstrating that the prosecutor's statements had a decisive effect on the jury's
decision. The comments were isolated in nature, and there was overwhelming
evidence of petitioner's guilt. Petitioner makes the point, in addition, that the remarks
were untrue, because he had offered to plead guilty, an offer which the State had
rejected. Accordingly, in petitioner's view, it was the actions of the State, and not of
his side, that had necessitated the trial. We cannot agree. True, petitioner had offered
to plead guilty, but he had not done so unconditionally. A more accurate statement
would be that petitioner had asked to enter into plea negotiations, a request that the
State refused. The State was under no obligation to negotiate. It had a right to go to
trial, just as petitioner did. Petitioner could have avoided a trial by pleading guilty
-12-
unconditionally. He chose not to do so. In our view, there is no miscarriage of
justice here, and therefore no plain error.
IV.
Petitioner's third and final point relates to a remark that the trial judge made in
the presence of the jury. As we have noted, Burns did not contest the charge, in the
sense of denying that he had committed the acts alleged. His lawyers attempted to
present a defense of diminished capacity or lack of specific intent, but they did not
offer any professional mental-health evidence in support of this defense. They tried
to get it before the jury in the form of "life history" testimony from the petitioner and
his parents: events of petitioner's childhood, trouble he had gotten into in school, the
difficulties of his new life as a college student, and the like. The prosecution objected
to this lay evidence, and the trial court sustained the objection. Notwithstanding this
action by the Court, which, as far as we can tell, was completely appropriate, counsel
persisted in asking questions that the Court had clearly ruled out. When objections
were sustained, the questions were rephrased in different form, and the objections
were again sustained. Finally, the trial judge lost patience and made the following
statement in the presence of the jury:
THE COURT: Objection sustained. Counsel, you've
elected to make your disrespectful argument in the
presence of the Jury and I'm going to answer you in the
presence of the Jury. You have not elicited any
information from this defendant about his mental state at
the time of these vicious crimes and the Court has properly
ruled that those other items are inadmissible, and you're
admonished not to criticize the Court's order and not to try
to get improper matters into evidence.
-13-
Defense counsel then moved for a mistrial "based on the Court's . . .
characterization . . . that this was a vicious crime. It's a comment by the Court on this
crime, and I believe that's uncalled for." The motion was denied.
The Court, in our view, should not have lost its patience and should not have
said what it did in the jury's presence. The Court's statement that counsel had
behaved disrespectfully, we think, was permissible, but we think it was error for the
Court to refer to the crimes charged as "vicious crimes." No doubt they were vicious.
The evidence amply supports the statement. In addition, there was no doubt that the
defendant had done what the State charged. Whether his actions were "crimes,"
however, was a decision to be made by the jury, and the trial court should not have
made a statement that assumed the answer to this question.7 The State makes the
argument that the evidence was harmless, and surely it was, so far as the question of
guilt or innocence was concerned, but petitioner also argues that this particular jury
had the job of fixing his sentence, and that the Court's characterization could well
have caused the jury to give the defendant the severe sentence he received. The
sentence, as we have noted, was 44 years, 50 years, and life on the three counts,
respectively. This sentence was almost exactly what the State had requested in its
closing argument (50 years, 50 years, and life). The sentence was made consecutive
by the Court, which the Court had the authority to do, but the present point has to do
with the jury's action in fixing the sentence. It is hard for anyone to say what
motivated the jury to make this decision, and impossible to know whether the trial
judge's use of the adjective "vicious" played any part in the jury's thought processes.
In this situation, there being no argument of procedural bar, we have some
difficulty with the point presented. Neither side can show what effect the improper
7
On the other hand, defense counsel herself stated in closing argument: "There
is no real issue about the crime itself." Tr. 224 (Respondent's Exhibit A).
-14-
remark had on the jury, so the case would come down, we suppose, to burden of
proof. If the State has the burden of proof of proving the error harmless beyond a
reasonable doubt, it is hard to see how it could win. Here, however, we think the
State does win, because the remedy of a mistrial is a drastic one, and certainly not the
only way the error could have been cured. A proper instruction admonishing the jury
to disregard the Court's characterization of the crimes, or, at least, reminding the jury
that it was its job, and not the Court's, to fix the penalty, no matter what remarks the
Court may have made during the trial, would, in our opinion, have cured the error.
No such instruction was requested. We agree with the statement of the Missouri
Court of Appeals:
The appellant did not seek a specific ruling, such as
requesting the trial court to instruct the jury to disregard his
characterization of the assault, instead he sought a mistrial.
Mistrials are drastic remedies and the granting of a mistrial
is within the trial judge's discretion.
759 S.W.2d at 291. We agree with this holding, and reject petitioner's argument for
this reason.
V.
In short, petitioner's second and third points, having to do with the prosecutor's
closing argument and with the trial court's remarks in the presence of the jury, are
rejected, the former on a plain-error basis and the latter after full review on the merits.
Petitioner's first argument, ineffectiveness of trial counsel, is remanded for further
proceedings. On remand, the District Court should determine first whether petitioner
has shown prejudice for procedural-bar purposes. If the answer to this question is
yes, the Court should consider the merits of petitioner's ineffective-assistance
argument. An important point to keep in mind, however, is that the ineffective-
-15-
assistance argument is open on habeas only to the extent that a Missouri appellate
court would have reviewed it on a direct appeal filed before January 1, 1988. To this
limited extent, the judgment of the District Court dismissing the petition for habeas
corpus is reversed, and the cause is remanded for further proceedings consistent with
this opinion.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-16-